Call for A Few Good Academics & Lawyers

To my friends and colleagues in international law around the world,

I am looking for some of you good people to volunteer some of your time and grey matter towards an analysis project reviewing the UK’s Iraq (Chilcot) Inquiry. It is without doubt that many of us have waited a very long time for the report to be released. Indeed, some of you may have been involved in matters directly related to representations before the Chilcot Inquiry. I know many of you will be interested in reading the report for personal and/or professional reasons. As somebody who lectures on War Crimes, I anticipate my students will be keen to raise the matter in the autumn.

Here is the thrust of the project:

I’m asking for us to come together and share our insights amongst ourselves, and to put out our review to media outlets for their use in the future. No matter where you are in the world, if you are able to hunker down with a PDF section of the report, provide annotations, and be able to write a review of the key information, we are looking to collaborate on a sort of international legal Cliffs/Coles notes to Chilcot, followed by a summary of possible implications the report might have. This may include providing interviews to television news, radio, and newspapers in your various locations – the wider the spread of academics and lawyers, the wider we will offer the final review.

Please get in touch if you are interested in participating. I’m hoping to get this project going rather soon, with the aim of having a completed publication by the early autumn 2016. You can either get in touch be responding to this post, or if you have my personal details get in touch directly.

You will require internet access, Adobe Acrobat Reader (free), and access to Google Docs. Ideally, you should be able to also participate in either Skype or Google Hangouts audio/video conferences too. I will provide technical support as needed.

I look forward to hearing from you all. I’m certain many others are as well.

Best,
George

Canada’s Last Chance? Truth, Reconciliation, Identity, and the Way Forward

A former high school teacher and now friend, Rex Taylor (@RexFTaylor) , posted to Facebook an article by John Ralston Saul ( (novelist, essayist and co-chair of  The Institute for Canadian Citizenship) regarding the conclusions of the Truth and Reconciliation (“Truth and Reconciliation is Canada’s last chance to get it right” Globe and Mail, 5 June 2015)  looking into the nightmarish ‘Indian Residential Schools’ system that rightfully should be a shameful and condemned chapter in Canadian history. Rex had asked for my opinion on this article, and due to the limits of commenting in-line on Facebook, I thought this would be a more effective medium.

Canada: A Nation in its Spring

First thing first: Canada is multi-cultural nation unique in my opinion amongst other States in the international community. (Mea culpa: I am a mixed-race Canadian citizen, as well as being a British citizen – currently living in London, UK) Growing up in Toronto, I was immersed in a diverse community where the word different did not necessarily mean bad. In contrast, my experiences in the UK have many a time included statements such as “if they’re going to come to our country, then they should accept the way things are here…”, often times whilst tucking into a tasty curry. (I’ll return to the concept of ‘the Other’ later…)

It was a period of transition, however, whereupon a culturally European-centric domination within Canada was being replaced by a more reflective and inclusive system of tolerance, exploration, and camaraderie. Certain stalwart and entrenched attitudes sounded off about this departure from their self-styled vision of historic privilege (and no, I’m loathe to go around accusing all of inherent expressions of privilege) wherein their homogenous vision of Canada was relegated to the waste bin of history. These growing pains are inevitable, particularly given a difficult existential question posed to most students in Canada: What is a Canadian?

“…No constitution, no Charter of Rights and Freedoms, no sharing of powers can be a substitute for the willingness to share the risks and grandeur of the Canadian adventure. Without the collective act of the will, our Constitution would be a dead letter, and our country would wither away.”

Prime Minister Trudeau, 17 April 1982

I suspect that such a question’s elusive answer depends greatly upon one’s self-identity, their surrounding community, and their experiences within the Canadian context. The lack of a single definition can be both traumatic and exciting – much of our identity comes from certain historical (genealogical) linkages that provide relational sets of rules and expectations of conduct, and where these do not sound in a national identity, one may begin to question the value of a society where expectations and rules may differ from one person to the next, from one to community to another. On the other hand, there exists a freedom to carve out a truly unique identity for Canada, one distinct from our colonial past and its cultural homogeneity. Canada is still in its ‘spring’ – though a process started in 1867, we only truly separated completely from Britain in 1982 with the Constitution Act (Canada) / Canada Act (UK) repatriating the Constitution and establishing our Charter of Rights and Freedoms. In a positive light, it is perhaps enlightening to remember the spirit of the nation when it became a truly sovereign and independent State:

However, in order to pursue the freedom of that Canadian identity (what PM Trudeau referred to as a “fresh start”), we must confront our past treatment of disenfranchisement of Canadians who suffered greatly from discriminatory policies and continue to experience the generational effects of those transgressions. This includes, inter alia, the horrific legacy of the so-called ‘Indian Residential Schools’, as well as our troubled relationship with the indigenous peoples of Canada.

(Dis-)Honouring the Treaties: Rediscovering our Canadian Legacy

By very brief means of a history, the nature of the relationship between the indigenous communities in Canada and the European nations that settled there were established by treaties, such as the Great Peace (1701), the Peace and Friendship Treaties (1725-1749), the Royal Proclamation (1763), and the Numbered Treaties (1871-1921). Most of these treaties meant land acquisition rights for Europeans in exchange for material goods thereto unseen amongst the First Nations peoples. Alliances were forged that ultimately lead the British domination of North America, and subsequently the repelling of American attempts to seize Canada after the US Independence from Great Britain. In short, there would have been no Canada without our First Nations brothers and sisters – settlers would have succumbed to the harsh winters and lack of geographic knowledge would have meant defeat at the hands of the USA.

Interestingly, from my perspective as a public international lawyer, is how these treaties are in essence international covenants between sovereign peoples. In fact, the Truth and Reconciliation Commission frequently refers to these agreements in the recommendations (Calls to Action). However, it is clear that this treaty-based relationship has deteriorated over the centuries, with many of the treaty provisions being ignored, unilaterally rescinded, or forgotten. The conditions of living for the First Nations indigenous peoples have been repeatedly subject to interventions due to public health and welfare concerns – often without consulting the people themselves.

One of these interventions was the Indian Residential School system. Originally conceived as a means of ensuring education for subsequent generations of Native people, the schools (typically run by the Church with the approval of the Canadian government) sought to assimilate children by preventing them from exploring their First Nations identities. The federal police, the RCMP, were authorised by law to remove Native children from their families by force and relocate them into the residential schools. These children were made to dress in non-Native clothing, and set a curriculum intended to create industrial workers – farming for the boys, and seamstresses for the girls. Religious indoctrination was part and parcel of this ‘education’, where the spiritual aspects of the children’s heritage was sacrificed for Christian worship. As funding became an issue for these schools, the work carried out as ‘education’ was typically used to subsidise the running costs of the school – in essence, these were Canada’s sweatshops run with child labour.

And if that were not enough, the children were subject to extreme physical and sexual abuses at the hands of their Church-provided teachers. The emotional and psychological traumas suffered by these people continue to present in generational challenges regarding their relationships with family and community. Alcohol and substance abuse amongst these victims is both common and tragic. It is unsurprising that Canada’s highest ranked jurist, the Rt Hon Beverley McLachlin (Chief Justice of the Canadian Supreme Court), has agreed with many that this dark Canadian legacy should be considered as ‘Cultural Genocide’.

We as Canadians, both indigenous and non-indigenous, must turn our attention to this matter that deeply affects such core community within our lands. We owe it not only to the victims of this legacy, but also to ourselves as Canadians who must understand how our relationship with the First Nations is perhaps the first and foremost aspect of answering the question of What is a Canadian?

Beginning Again, Remembering the Past

Over the past 33 years, the relationship between the Canadian federal government and the First Nations reads like a dysfunctional family history. The Oka standoff in Quebec, numerous blockades – notably the one I witnessed personally just outside of the Six Nations of the Grand River reserve in Caledonia, Ontario (this dispute began in February 2006 and continues today), and numerous failings regarding quality of life on the reserves across Canada. One cannot help but feel frustration and anger that such a situation exists in a country that is typically viewed by the world as a beacon for tolerance and understanding in a multi-cultural population.

We have, of late, seen a much more politically engaged Native population, eager to address these concerns and to seek constructive methods for building a new and positive relationship. Here is a video by John Ralston Saul from October 2014 addressing this very point:

However, as with any Truth and Reconciliation process, we should begin with a certain ethical foundation:

  • Our intentions should always drive towards a strong, dignified, and respectful pan-Canadian relationship with each other going forward.
  • We are all Canadians – any approach that aims to create an ‘us and them’ division ultimately will fail. Canada should never have two-tier citizenship, in attitudes or in practice.
  • Inclusion and consultation with affected persons should be the bedrock of any policies, whether specifically dealing with indigenous peoples or non-indigenous groups.
  • We must recognise the failings of our past: there is not a light under which the current treatment of the Aboriginal peoples of Canada can appear to be positive. For instance, the current system of land claims settlements based on the Treaties is a violation of our principles of law, namely to have legal redress in a timely manner. The current system typically takes over 20 years to consider each claim, and that is simply unacceptable.
  • Equally, mutual respect between all the peoples of Canada requires that we individually do the heavy lifting of changing, what Trudeau referred to as the ‘willingness to share the risks and grandeur’. Ralston Saul suggests that it is the non-Natives of Canada that are the only ones that must change. I disagree – change must come of us all, and we must together embrace the effort to begin again, to have ‘failed and to try again’.

McLachlin CJ (in her speech of 28 May 2015) points out three principles that apply not only to the TRC, but overall to the relationships of Canadians throughout the land, what she refers to as essential to the ‘norm of tolerance’: “first, insisting on respect for the human dignity of each person; second, fostering inclusive institutions and cultural attitudes in civil society; and third, maintaining the rule of law.

“Living together in the ethic of tolerance is not easy. But it is worth the effort.”

Rt Hon Beverley McLachlin, Chief Justice of Canada

While the first two of the Chief Justice’s points are relatively undeniable, it is the third point that should be scrutinised by both sides of this situation. Certainly, the legal obligations undertaken in the past by Britain and France, now inherited by Canada, have been treated with a declining sense of importance by provincial and federal authorities – in certain circumstances completely violating what amounts to international law. This too is not typically the vision of Canada that most citizens wish to see as their identity. Equally, however, both Native and non-Native participants in reconciliation must submit to the precept that it is the law that treats us all as equals, and we all must commit to adhering to the law whilst moving forward towards a mutually beneficial process of re-establishing normal and positive relations between all Canadians. It is this commitment to the legal and social equality of its citizens that takes us further into the realm of answering the question of our collective Canadian identity, non-Native and Native citizens alike.

Asymmetric Citizenship: How the Canadian adventure may end in disaster

While accepting the premise of Chief Justice McLachlin, and (personally) finding much to admire in PM Pierre Trudeau’s 1982 vision of the ‘Canadian adventure’, there is one more aspect that truly ought to concern all Canadians: Canada must be for all of us, equally and simultaneously.

Much of the Constitution of Canada is predicated upon a collective system of resource sharing and power sharing in order to offset the various means of fluctuating circumstances that can befall one community or another from time to time. The financial relationship between the provinces was conceived as a means of equalising the Canadian quality of life in a manner that no Canadian would be left behind.

Sadly, this Constitutional premise has been sorely neglected in relation to the sharing of Canadian resources with the indigenous peoples to whom we owe our nation’s existence. All one has to do is pay attention to the plight of Natives living on certain reserves where there has been a complete collapse of social welfare and infrastructure. It is a difficult thing to realise standing at the intersection of Bay and King Sts in Toronto that there are entire communities without adequate sanitation, running water, or even shelter against our notoriously unforgiving winters. It is difficult perhaps due to a lack of active consideration, or worse, complete ignorance. As a society, we should be able to stand in the most advanced of cosmopolitan metropolises and still feel a kinship with the East Coast fisher, the Prairies farmer, the Inuit hunter. A Canadian is a Canadian is a Canadian – we must equally “share in the risk and the grandeur”.

When we can allow our fellow Canadians to be treated less than equally, I would be remiss to neglect Shakespeare’s sage wisdom in the Merchant of Venice:

“If you prick us with a pin, don’t we bleed? If you tickle us, don’t we laugh? If you poison us, don’t we die? And if you treat us badly, won’t we try to get revenge? If we’re like you in everything else, we’ll resemble you in that respect.” – Shylock, Act 3 Scene 1

While I have suggested that the future of the Canadian citizen must be grounded in the rule of law, we must also accept that, much like Shylock, the turbulent response of the Native peoples was warranted given the abhorrent history of treatment by the colonial and post-colonial governments of the country. As mentioned in the TRC’s Call to Action recommendations, the history of the residential schools ought to form a part of the factual background when dealing with those persons who have taken up acts of civil disobedience and action to draw attention to this plight.

However, if we are to move forward together, we must not simply be aware of the tragedy of the residential schools as events that affected only the indigenous people of Canada. I have been aware of public attitudes when discussing similar events that traditionally fulfill the international legal definition of genocide, e.g. the Holocaust, the Rwandan Genocide, the conflict in the territories of the former Yugoslavia. Most of the perception is that these crimes were committed against a particular group who were the identified victims. I am often concerned that, while indeed the targeted protected group are the primary victims of these crimes, the path towards eradicating actions conceived in genocide (in the present case, the aforementioned cultural genocide) must rely upon the larger humanity recognising that these crimes are crimes against all of us. The diversity of humankind is its strength – linguistically, socially, culturally, ethnically, genetically – and attempts to reduce this diversity injures the human condition for us all. In Canada, the heritage of the Native peoples in Canada is as much a part of their identity as it is ours. We collectively must work to alleviate the injustice and inequality between Native and non-Native citizens because in the final sum, each of our individual identities can only truly be conveyed in relation to all of our fellow Canadians. Understanding the place of the residential schools requires us all to employ, in a word, empathy.

Is this Canada’s last chance?

John Ralston Saul has employed the rhetoric of this moment being the proverbial gun-to-the-head for any conception of Canadian identity being one of compassion, tolerance, and inclusiveness. While most of his discourse is agreeable and well-considered, I’m afraid I cannot agree with the terminal diagnosis that he has determined for Canada.

This is not a country defined by last chances, but moments of reckoning whereupon we are called upon to recognise our history, reconsider our direction, and reinvest ourselves in pursuit of our principles as a nation. Saul himself states: “The story of Canada is the story of many such peoples, trying and failing and trying again, to live together in peace and harmony.” Agreeing with this, it follows that we can never assume that we have perfected the Canadian formula. Indeed, even if we could fully implement the recommendations of the TRC, we must be brave enough to realise that other challenges may arise in the future.

What makes us all Canadian is a commitment to ourselves and each other that we will come together in these moments of reckoning with the entirety of our community’s will to deliver on the promise of Canada for all of her citizens. The Constitution provides us a very robust and principled framework for engaging these challenges. However, as noted by PM Trudeau, it is the people who breathe life into this country, no matter what hurdles come our way.

While it is right and overdue that the dishonourable legacy of the residential schools be openly addressed and rectified, it is important for all Canadians that we maintain our commitment to each other, conceived in dogged determination and hope for our nation’s future. We must, in our uniquely magnificent multi-cultural diversity, empathise with each other in a manner consistent with tolerance and admiration for our differences, and to truly feel the tragedy of the few is a tragedy for us all. This is not only a moment of healing for the indigenous peoples of Canada, it is a moment for us all to come together in strength and support for all Canadians. We must move forward together, or the dream of Canada shall wither on the vine.

Is this Canada’s last chance? No, it is not. However, answering the question ‘What is a Canadian‘ will greatly depend on how we deal with our past and work towards ensuring a bright and inclusive future for all people in Canada.

I wish to take the opportunity to dedicate this post to my friend and teacher Mr Rex Taylor. You opened the eyes of many of your students and imparted the skills of critical thinking and compassion. I could not possibly have begun to answer the question had it not been for teachers like you.

The Road to PhD: Day 1 – Application and Ideas

stick_figure_sit_in_question_mark_1600_clr_2623

I have spent the last year or so struggling to determine where my career should go next. As a matter of background, I wrote my LL.M Thesis on the Scottish Referendum and the international legal aspects that should inform that process. Necessarily, my interests were more than academic – research and writing must eventually be tested in the crucible of reality. In this instance, that meant continuing observations and analysis of the Referendum, including the aftermath. (I authored a submission to the Smith Commission post-referendum with regards to the implications of the promises for further devolution and constitutional change during the campaign.)

This time has come and gone, though it remains to be seen as to what constitutional changes will be implemented – change that will only come after the next UK General Election in May.

stick_figure_hold_earth_1600_clr_1925However, many of the questions posed by the Scottish referendum, in conjunction with events in Ukraine (Crimea and the Eastern Regions) and so-called Islamic State (Syria and Iraq), have created a significant dearth of opportunity for considering what may, for some, be a straightforward question: What is a State?

More specifically, it is likely to be the case that my PhD will examine the role that international legal theory plays in the creation of new states, juxtaposed against the looming backdrop of practical reality and pragmatic geopolitical policies. (Fun stuff, I know…)

Today has been carving out some supplementary chapter headings as a roadmap for my research. I hope to use this template to formulate the content of the PhD application itself, which would then be submitted to a number of institutions for consideration. The key elements in deciding which universities to apply to comes down to which faculties contain relevant experts on this topic, capable of ensuring that I keep to both the project path and within the relevance of international/constitutional law. That said, I do have a couple of institutions that are top of that list in my mind…

To elucidate on the central motivation behind the PhD, I offer the following thought. The experience of Québec and Scotland showed a certain acceptance that a particular domestic constitutional arrangement can be made whereby a sub-state territory may gain independence and attain statehood without violence or conflict. The main idea here would be that the parent state would immediately give legitimacy to the newly-emerged state should the constitutional order be satisfied. However peaceful and civilised that arrangement may be, international law would have had little to no input on whether the international community  at large would recognise the legitimacy of the emergent state. The prevailing declaratory theory of statehood takes only into consideration that a state has (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into foreign relations. (These are collectively referred to as the ‘classical’ or ‘Montevideo‘ criteria of statehood.)

table_of_the_world_1600_clr_8705There exists a competing theory of statehood – the constitutive theory. To date, it has been rejected by various courts (including the International Court of Justice in The Hague). At its core, the attainment of statehood status depends on the international recognition of a particular state by other states. As recognition is primarily a  political decision, not a legal one, criticism for this theory is understandable – erstwhile-legitimate states may be denied a ‘seat at the top table’ and all the privileges that are commensurate to being a primary state actor in the international arena.

However, suggesting that there is no legal defined process under which a sub-state territory may rely upon for guidance (for which the current theory does not make account) leaves open the process to both political perversion and systematic abuse. In essence, even having the goalposts moved still systematically retains the seed of hope; the absence of any international legal process effectively removes the goalposts altogether. And the absence of hope is antithetical to human condition. Hence, non-state groups and foreign interveners take advantage of this lacuna in the law to devastating effect: consider so-called Islamic State’s intent to establish a Middle Eastern state. It is arguable that they may, under the current declaratory theory, already fulfil the criteria for statehood. This is despite the illegality of their territorial seizure or brutal oppression of opposition. This was equally so for the Crimean peninsula in Ukraine.

And so, I hope to consider the experience and legal research surrounding this conundrum in law that may on paper prohibit illegality and remain ambiguous on state creation but cannot account for the factual reality that faces us today. It cannot be that such a fundamental basis of human society – the state – should remain as elusive as it currently stands.

 After all, what’s the worst that could happen?

Do not look at the Ark!
The Raiders of the Lost Ark (Copyright 1981 Paramount Pictures and Lucasfilm)

 

Alanis Morissette is God?
Dogma (Copyright 1999 View Askew Productions and STK)

 

Torture! What Is It Good For? Absolutely Nothing… Ever.

US Senate Report on CIA Detention Interrogation Program (Wikimedia)

The recent declassification of the US Senate Committee Report on the Central Intelligence Agency’s use of torture on detainees has (rightly) provoked public outcry – both against the use of Enhanced Interrogation Techniques (EITs) that amounted to torture, as well as backlash from the former Bush 43 administration over perceived flaws and misapprehended findings within the report. Those denouncing the report also believe declassification occurred as a result of the politicisation and demonization of the Republican Party, the CIA and the efforts of the US Armed Forces to combat terrorism over the last decade and a half.

However, there is a middle ground here where arguments have been made out by the public and certain government and intelligence actors that surreptitiously suggests that torture may be illegal and ugly, but given the shocking brutality of groups like al-Qaeda and Islamic State may morally and/or ethically warrant a moderate employ of torture (such as waterboarding aka simulated drowning), particularly when it results in actionable intel that ‘saves American lives’. Even more worrisome is the perception that such arguments are both intellectually brave and perfectly reasonable.

Neither are true.

In rejecting another set of ‘Enhanced Interrogation Techniques’, the Israeli Supreme Court in Public Committee Against Torture in Israel v The State of Israel (H.C. 5100/94) stated:

“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. […] law infringing upon a suspect’s liberty “befitting the values of the State of Israel,” is enacted for a proper purpose, and to an extent no greater than is required.” (at paragraph 39)

One accepts that we are in the midst of troubling and uncertain times. But in making such acceptance, one must outright reject the notion that somehow criminal acts such as torture are not absolutely internationally prohibited by law. There are few internationally criminal acts that rise to this level, including (but not limited to) genocide, war crimes, and crimes against humanity (wherein torture itself is a modality of the crime).

Furthermore, the notably absent comment from Bush 43 on the outcome of this report is not, as some pundits portray it, a mystery. Even Cheney should consider his public comments carefully. Taking a cue from the Pinochet extradition cases in UK for crimes committed in Chile during his military dictatorship, the absence of any domestic prosecutions for torture may lead to international indictments against the offending administration where it is clear that these acts were part of a systematic and executively-approved mandate. That terrorism provides a contextual narrative behind the impetus for such coercive techniques is both legally and morally bereft of evidential value. It is also a criminal act for which countries are legally required under international law to pursue prosecutions against domestic perpetrators or extradite to another state that is willing to do so (a principle in international law known as aut dedere aut judicare). The international prohibition on torture is both absolute and non-derogable (arguably jus cogens in nature), meaning under no circumstances may it be acceptable as a means of obtaining information – whether or not the information obtained is reliable.

And that is what is most disturbing about this: There is a not-so-tacit permissiveness in the report’s critics, where information gathered under torture is reliable, actionable and can point to intelligence and security successes (particularly in so-called ‘ticking bomb’ scenarios of an imminent security threat), that any country can wash their hands of the moral indignity of using torture is tantamount to criminal hypocrisy of the highest order. Most reasonable individuals are aware of the challenges that such a restrictive policy places before the security services (re-read the Israeli Supreme Court’s comments). Theirs is not by any means an easy profession. However, in defending and securing the future of any state, the best and most reliable source of unrelenting loyalty to that state comes from the unshakable and genuine belief that it is a state worth preserving. All states have moral and ethical issues, but it is those fundamental legal principles of that state that give real meaning to both the moral and legal character of its citizens and its representatives. It is submitted that the adherence to the strict and absolute prohibition on the employment of physical and mental torture is one of those fundamental principles and to abandon such would be an act of irreversible self-harm.

Lastly, sparing some criticism for those involved in the creation of international law: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) definition of torture (Article 1) is ‘purposefully vague’. That is to say, rather than enumerating a list of prohibited acts as torture (which invariably leads to arguments that omitted acts are less than torture and thus acceptable), the definition focuses on (a) the intentional infliction of severe pain or suffering, whether physical or mental, (b) for such purposes as coercively obtaining information or confession from the subject or a third-party, and (c) where such acts were inflicted, instigated, consented to or in acquiescence of a public official or person acting in official capacity. The problem here is that even this definition is open to each state’s interpretation as to what ‘severe pain or suffering’ means (i.e., if moderately painful, it may not be torture). It is here in this darkest of grey areas where the law does not offer the protections that the public may incorrectly assume that it does. That is on us as international lawyers for not having the wherewithal to address the matter more robustly – something for which victims of torture-by-another-name may find unforgivable.

Gaza: why Operation Protective Edge was not genocide (Re-post)

By Dr. Paul Behrens, University of Edinburgh

When, in armed conflict, civilians are killed on a large scale, when schools are attacked and children are orphaned, charges of genocide are often not far behind. In discussions about Operation Protective Edge, the Israeli military attack on Gaza earlier this year, accusations of genocide have therefore played an important role.

Mahmoud Abbas, the Palestinian president, recently accused Israel of carrying out a “war of genocide”. The National Lawyers Guild of America raised the charge of genocide in a letter to the prosecutor of the International Criminal Court requesting that the matter be investigated. Genocide was also investigated in a special session of the Russell Tribunal on Palestine, which resulted, a few weeks ago, in one of the most detailed assessments of Operation Protective Edge to date. It is a crime for which the international authorities can impose a sentence of life imprisonment (as the International Criminal Tribunal for Rwanda did on several occasions following the 1994 atrocities in that country).

Tribunal gathering

The Russell Tribunal was originally set up by Bertrand Russell in the 1960s to investigate allegations of US crimes in Vietnam. It is not a court of law, but its jury contains prominent legal minds (including Prof John Dugard, Prof Richard Falk and Michael Mansfield QC), as well as people who have made their mark in other fields of life (including the film director Ken Loach, the writer Paul Laverty and the author and activist Christiane Hessel).

What matters to international courts is the mindset behind the action […] the perpetrator must have the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

Ken Loach and Roger Waters (EPA)

I was invited to address the tribunal on the legal elements of genocide (but was not involved in the drafting of its findings). For some, it may have been a somewhat surprising presentation. Lawyers have traditionally given genocide a very restrictive interpretation – and a good part of my talk thus dealt with the reason why applying it to the situation in Gaza is not straightforward. To my mind, “genocide” is simply not the correct term for the Israeli offensive.

In common speech, genocide tends to describe atrocities which result in very large victim numbers. Yet that is not how the law has approached the concept. What matters to international courts is the mindset behind the action. In the words of Article II of the Genocide Convention, the perpetrator must have the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

That causes difficulties from the outset. In Operation Protective Edge, a main target of the Israeli forces was Hamas – clearly a political group, and thus outside the protection of the convention. The Palestinians do qualify as an “ethnic” (perhaps even as a “national”) group. But proving that they had been targeted “as such” is a tall order.

Convention on the Prevention and Punishment of Genocide (1948) (UN)

Motivationally speaking

Looking into the mind of a perpetrator is difficult, if not impossible. Take the attacks on civilians and civilian objects in Gaza. That they occurred is a matter of fact. But the motive is far from clear. Sometimes military considerations were invoked (Hamas had reportedly used residential areas and even hospitals as launch sites for rockets). Sometimes the attacks may have been accidents. Sometimes no clear explanation was provided. This makes it difficult to satisfy the requirement under international law that genocidal intent had been the “only reasonable explanation” for the perpetrators’ acts.

Not even the extent of the operation is helpful evidence. It is reported that more than 2,000 Palestinians lost their lives in the conflict – a horrific number for a conflict lasting 50 days. But victim numbers do not say much about the underlying intent. When the UN General Assembly in the 1990s asked the International Court of Justice to rule on the legality of nuclear weapons, several states claimed that the use of these arms indicated genocidal intent. The court did not agree: even in situations of this kind, intent had to be established on a case-by-case basis. The threshold for evidence for genocidal intent can be very high indeed.

In situations of this kind, war crimes and crimes against humanity are often applicable as well […] Under international law these crimes are not seen as less severe than genocide.

An impartial tribunal also has to consider evidence which may negate genocidal intent. Where Operation Protective Edge is concerned, this includes the fact that the Israeli military at times issued warnings before attacks on civilians were launched. Even if the warnings may often have been ineffective, they may indicate that the perpetrators had motives other than the destruction of the Palestinians as a group.

Israeli ground offensive as Operation Protective Edge gets underway (EPA)
The fact that Israeli extremists – including those who reportedly kidnapped and killed a Palestinian teenager – had to face trial in their own country, casts further doubt on the existence of genocidal intent within the Israeli leadership.
 

Strict interpretation

The concept of genocide which emerges from these considerations may appear very narrow indeed, and it is true that the strict application of rules on evidence will often favour the accused. That is the reason why I was unable to conclude that genocide had been committed. It is probably the reason why the Russell Tribunal did not enter a finding of genocide either.

That does not mean that those who launch attacks on civilians have committed no crimes under international law. In situations of this kind, war crimes and crimes against humanity are often applicable as well (and they, too, were considered by the Russell Tribunal, along with the crime of incitement to genocide). Under international law these crimes are not seen as less severe than genocide.

The very rejection of the genocide charge will still cause controversy, but it was the right decision. Since the tribunal accepts international law as its frame of reference, that law has to govern its findings. And there is merit in that. Going back to the rules of international law, the common hymn-sheet of the international community, may yet provide the measure of reason which is so desperately needed in this debate – a debate on an issue which can hardly be of greater concern to the world as a whole.

The Conversation

Paul Behrens was awarded funding by the British Academy in 2011 for a research project on genocidal intent.

This article was originally published on The Conversation.
Read the original article.

Kenyan President uses Tory human rights plans to defend war crimes charges

This follows thematically from my first blog entry regarding the UK’s threat to withdraw from the ECHR and the Council of Europe. ‘Putting Britain First’ policies that ignore that Britain is part of the international community in order to quell short-sighted, nationalistic and isolationist political minorities threatens to undermine the reputation of the UK as a global role-model for the adherence to the rule of law (including international law to which all countries are bound) and as supposed champions of human rights at home and abroad.

Original Article by @AdamWagner1 of 1 Crown Office Row chambers and ukhumanrightsblog.com – Definitely endorsing you to follow both.

UK Human Rights Blog

Photo credit: Guardian.co.uk Photo credit: Guardian.co.uk

It is easy to forget that our domestic debate over the European Convention on Human Rights might be having an international impact. But the UK is only one of 47 states which is party to the Convention, and the European Court of Human Rights in Strasbourg protects over 800 million people.

This morning, we brought you exclusive interviews with survivors of the Beslan massacre who are rightly worried that if the UK leaves the Convention, or even threatens to leave as the Conservatives did recently, that will affect their fight for justice. In short, Vladimir Putin would have a ready excuse for ignoring any conclusions reached by the Court.

Well, here is another example of the effect which political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving…

View original post 252 more words

An Uncomfortable Look in the Mirror: Canada in the World, Before and After the Ottawa Shootings

Brilliant addition to this now-unfortunately unavoidable conversation for Canadians. Fully endorse your consideration of Mark’s statements here.

Justice in Conflict

Ottawa. (Photo: Creative Commons / Endlisnis) Ottawa. (Photo: Creative Commons / Endlisnis)

Amongst many Canadians, a popular response to the shootings in Ottawa that claimed the life of Nathan Cirillo earlier this week has been: “This doesn’t happen here… This is Canada.” And that’s true enough. Political violence of the sort we witnessed this week rarely touches Canadian lives. Ottawa is one of those curiously apolitically political cities – a place where the majority of the workforce works directly or indirectly for the government but a community where global politics rarely penetrates every day life. But the Ottawa shootings should bring into relief the need for the Canadian government and Canadians at large to look themselves in the mirror and ask a simple yet tough question: why did this happen?

The easiest answer, and one that has already been proffered by a host of observers, is that a single, crazed lunatic who hated Canadian values went on…

View original post 1,158 more words